A newly filed bill in Congress aimed at protecting children online could create headaches for advertisers trying to promote legal marijuana and other regulated substances.
Titled the Kids Online Safety Act (KOSA), the bipartisan proposal—from Sens. Marsha Blackburn (R-TN) and Richard Blumenthal (D-CT) as well as Senate Majority Leader John Thune (R-SD) and Senate Minority Leader Chuck Schumer (D-NY)—would create a “duty of care” for online platforms such as social media and streaming video services, requiring them to take steps to prevent access to potentially sensitive content by minors.
That includes advertisements for cannabis products and certain other drugs and services.
A factsheet from Blackburn’s office says the duty of care “requires social media companies to prevent and mitigate certain harms that they know their platforms and products are causing to young users.”
The sponsors say the legislation is necessary to protect children from pernicious practices that keep “kids glued to their screens” for hours a day, alleging that “Big Tech is trying every method possible to keep them scrolling, clicking ads, and sharing every detail of their life.”
The 63-page bill “targets the harms that online platforms cause through their own product and business decisions,” the factsheet says, “like how they design their products and applications to keep kids online for as long as possible, train their algorithms to exploit vulnerabilities, and target children with advertising.”
Much of the proposal is aimed at limiting content that fuels behavioral health disorders. Platforms would need to “exercise reasonable care in the creation and implementation of any design feature to prevent and mitigate the following harms to minors,” it says, listing eating and drug use disorders, suicidal ideation, violence and harassment, sexual exploitation, financial harm and others.
As for controlled substances, online platforms would be prohibited from facilitating the “advertising of narcotic drugs, cannabis products, tobacco products, gambling, or alcohol to an individual that the covered platform knows is a minor.”
The provision around drug use lists the “distribution, sale, or use of narcotic drugs, tobacco products, cannabis products, gambling, or alcohol” as risks that platforms would need to actively guard minors against.
Video streaming platforms meanwhile, would be required “to employ measures that safeguard against serving advertising for narcotic drugs, cannabis products, tobacco products, gambling, or alcohol directly to the account or profile of an individual that the service knows is a minor.”
“Big Tech platforms have shown time and time again they will always prioritize their bottom line over the safety of our children, and I’ve heard too many heartbreaking stories to count from parents who have lost a child because these companies have refused to make their platforms safer by default,” Blackburn said in a press release about the legislation.
“We would never allow our children to be exposed to pornography, sexual exploitation, drugs, alcohol, and traffickers in the physical space,” she added, “but these platforms are allowing this every single day in the virtual space. Congress must not cave to the wills and whims of Big Tech, and we must not be bullied into submission. Now is the time to stand up and protect future generations from harm by passing KOSA.”
Schumer said he is “proud to support this bipartisan legislation which provides necessary guardrails to protect our kids.”
“Too many kids have had their personal data collected and used nefariously. Too many families have lost kids after they took their own lives because of what happened to them on social media,” the Democratic minority leader said in the release. “I thank these brave parents and families for sharing their stories. Keeping our kids safe from online threats should not be a partisan issue, I thank my Senate colleagues for championing these bills and I look forward to swift passage.”
Few in the public policy space oppose the intent of the legislation, but some say its broad and potentially vague requirements could be difficult in practice.
Shoshana Weismann, a fellow at the free-market R Street Institute, said the measure could ultimately block wide swaths of online advertising that are accessible by minors—even if the ads don’t target children, as the bill’s proponent’s suggest.
“The problem is that the knowledge standard here is so loose,” she said in an email to Marijuana Moment, pointing to the bill’s definition of knowledge by platforms that they’re serving content to underage users.
It says that ‘‘know’’ or ‘‘knows’’ means to “have actual knowledge or knowledge fairly implied on the basis of objective circumstances.”
“That can be used to mean that platforms ‘should have known’ that a user was a minor,” Weismann said, “because they were, say, researching colleges, looking at SpongeBob memes, or by lots of other arbitrary possible criteria.”
An FAQ section on the factsheet from sponsor Blackburn’s office says that the bill would not impose age verification requirements or force users to provide their government IDs. But Weismann says platforms might ultimately decide that’s the only prudent way to shield themselves from liability under the proposal.
“Despite the authors’ claims, the only way to avoid liability here is to verify the ages of users,” she said. “Even then, there is no guarantee that minors won’t come into contact with the specified content.”
The previous version of KOSA, introduced in the 118th Congress, won Senate approval last summer but did not pass out of the house.
After last year’s Senate passage of the measure, Jenna Leventoff, ACLU’s senior policy council and director of the civil right’s group’s national political advocacy division, said she was skeptical the legislation would pass constitutional muster.
A number of states have attempted to adopt bills similar to KOSA, Leventoff pointed out, and “in almost every case, a court has evaluated those laws and determined that they are likely to be unconstitutional.”
“It’s extremely likely that KOSA is unconstitutional,” she said at the time,” and it makes me wonder why Congress is trying to enact something that won’t hold up in a court of law.”
At the state level last year, Colorado’s Senate passed a bill similarly aimed at protecting minors from drug and other controversial content. But the proposal—which was later put on hold indefinitely by a House committee—drew fire from advocates such as Weismann at R Street Institute.
She and other critics pointed out at the time that the bill could ban content around over-the-counter cough syrup and even, potentially, the Colorado governor’s social media posts in favor of the state’s legal psychedelics industry.
Under existing regulations, states that have legalized have generally seen less cannabis consumption among young people compared to states where marijuana remains illegal, according to a study last year in the Journal of the American Medical Association (JAMA) Pediatrics. That study found that legalization was generally associated with more young people reporting not using marijuana, along with increases in those who say they don’t use alcohol or vape products either.
Those findings reinforced previous observations that legalizing and regulating marijuana for adults typically does not increase youth use of the substance, contrary to what opponents of the policy change often argue.
An analysis of government survey data published earlier this year by the advocacy group Marijuana Policy Project, meanwhile, found that youth marijuana use declined in 19 out of 21 states that legalized adult-use marijuana—with teen cannabis consumption down an average of 35 percent in the first states to legalize a decade ago.
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